Widermyre v. State

• Decision Date: 07 March 1969
• Docket Number: No. 969,969
• Citation: 452 P.2d 885
• Parties: James Calvin WIDERMYRE, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 885

452 P.2d 885

James Calvin WIDERMYRE, Appellant, v. STATE of Alaska, Appellee.

No. 969.

Supreme Court of Alaska.

March 7, 1969.

Clifford J. Groh, Anchorage, for appellant.

Douglas B. Baily, Dist. Atty., Anchorage, for appellee.

Before NESBETT, C. J., and DIMOND and RABINOWITZ, JJ.

OPINION

RABINOWITZ, Justice.

This appeal primarily concerns the superior court's denial of appellant's second motion for post conviction relief under Criminal Rule 35(b). ¹ In part, Criminal Rule 35(b) provided that:

Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the State District Attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.

In the case at bar the superior court denied appellant's applications for post conviction relief without holding any evidentiary hearings.

On January 11, 1966, an indictment was returned against appellant charging him with the felony offense of passing a forged check. Less than a month later, the Anchorage district attorney's office filed an information charging appellant with violation of Alaska's habitual criminal act. ² The next event of significance occurred when appellant's counsel, Warren A. Tucker, filed an affidavit in support of a motion for psychiatric examination. In this affidavit of April 28, 1966, Mr. Tucker stated in part that

he has encountered certain difficulty in obtaining responsive and coherent answers from the defendant; that he has observed a distracted and inattentive attention in the defendant which makes him doubt that he has a clear understanding of the gravity of the charges against him and that he is informed and verily believes that he is suffering from epilepsy and is currently taking medication known as dilatin and phenobarbital for that mental disease * * *. ³

The state and appellant's counsel then stipulated for a psychiatric examination to determine whether appellant was legally sane at the time of the commission of the offense, and to further determine whether or not he was competent to assist in his own defense. A psychiatric examination was ordered, completed, and a hearing held on the issue of appellant's competency. At this May 10, 1966, hearing, Dr. Charles Ward, a psychiatrist attached to the staff of the Alaska Psychiatric Institute, testified that in his opinion appellant was competent to assist in his own defense. ⁴ During the course of his examination, the doctor was asked whether appellant was presently taking narcotics of any kind. The witness responded:

I don't think he is, no sir, and I don't think he's taken them. I couldn't swear to that but I don't think he is. I don't think he's taken any since he's been out of prison.

The competency hearing was then continued until May 18, 1966, in order to permit the completion of additional psychological and physical examinations of appellant by the Alaska Psychiatric Institute. At the conclusion of this hearing, Superior Court Judge Ralph E. Moody found appellant 'mentally competent to understand the proceedings against him and to properly assist in his own defense.' ⁵ The next morning appellant appeared in superior court before Judge Edward V. Davis. At this time appellant was represented by both of his court-appointed counsel, Messrs. Tucker and Occhipinti, who informed the court that appellant desired to withdraw his plea of not guilty to the forgery indictment and to enter a plea of guilty. Judge Davis then examined appellant for the purpose of ascertaining whether the plea was made voluntarily with the understanding of the nature of the charge. After the guilty plea had been accepted, the prosecutor asked the court for permission to have appellant sworn. This request was granted and the state's attorney then proceeded to examine appellant as to the circumstances of the forgery charge, as well as the basis for appellant's withdrawal of his plea of not guilty. At the conclusion of the change of plea proceedings, the other felony indictments which were pending against appellant were dismissed. Also dismissed was the information in which appellant was charged with violation of Alaska's habitual criminal statute. A presentence investigation and report was ordered and, pending imposition of sentence, appellant was released on his own recognizance. Prior to the termination of this change of plea proceeding, Judge Davis advised that he would not be able to sentence appellant and obtained the consent of appellant and both his court-appointed counsel to permit Judge Moody to sentence appellant.

One month later, on July 19, 1966, appellant appeared before Judge Moody for sentencing and when asked if he had anything to say, stated:

Well, Your Honor, don't know very much I could say. Just have to ask the Court's mercy.

Appellant was then sentenced to 10-years' imprisonment and was, upon his request, released on his own recognizance for a few days in order to visit with a relative who had come to Anchorage.

Thirteen months later, on September 19, 1967, appellant filed a document prepared without the assistance of counsel. This document was captioned in part 'Petition to Withdraw Plea of Guilty for Manifest Injustice Pursuant to Rule 32(d) of the Rules of Criminal Procedure for the State of Alaska.' ⁶ The purported factual basis of appellant's pro se petition was that he 'was mentally incapacitated at the time he tendered his plea of guilty due to his ingestion of an hallucination type drug known as LSD some twelve hours before such plea was tendered.' The petition was supported by appellant's affidavit where he stated in part:

That prior to, and at the time, affiant tendered his plea of guilty in the aforementioned case, he was heavily addicted to the use of barbiturate type drugs:

That the evening prior to affiant tendering his plea of guilty in the aforementioned case, he did take two capsules of a drug known as LSD;

That affiant did ingest this drug (LSD) in the hope of relieving his emotional problems and tension which had led to increasing his consumption of barbiturate type drugs;

That affiant's addiction to the aforementioned type barbiturate drugs, together with his ingestion of two capsules of LSD, impaired his mental capacities to the degree that he did not plead with understanding;

That affiant's recollection of the period of time he tendered his plea of guilty, is like recalling something as in a dream, rather than a recollection. ⁷

In its memorandum in opposition to appellant's petition, the state took the position that the inadequacies of appellant's showing prevented the granting of any relief. ⁸ Thereafter, on September 28, 1967 in open court Judge Davis, without holding an evidentiary hearing, rendered an oral decision. ⁹ In conformity with his oral decision, Judge Davis subsequently entered an order denying appellant's motion to vacate sentence. ¹⁰ In this order the superior court concluded that Criminal Rule 32(d) was inappropriate and considered appellant's application for post conviction relief as made pursuant to Criminal Rule 35(b). In denying appellant's application, the superior court specifically found 'that Mr. Widermyre at the time of making his plea was not under the influence of LSD or of any other drug.'

No appeal was taken from the superior court's order of October 1, 1967. ¹¹ Four months after Judge Davis denied appellant's first application for post conviction relief, appellant filed, on February 2, 1967, a 'Motion to Vacate Sentence and Judgment.' In this motion appellant asserted that Judge Davis' denial of his petition was a nullity because 'petitioner's allegations, in the prior motion, related to facts outside of the record, and petitioner was not afforded an opportunity to prove or substantiate his allegations with evidence.' In this second motion to vacate, appellant reasserted his purported mental incompetency at the time he entered his guilty plea; that he was not guilty of the crime charged; and additionally asserted he was denied due process of law because he was deprived of the right to present evidence which would have proved the truth of his allegations. In his affidavit in support of his Criminal Rule 35(b) motion to vacate the judgment, appellant stated:

2. That prior to and at the time I entered my plea of guilty, I had been taking large amounts of what are commonly called 'dangerous drugs';

3. That I had been taking these drugs along with the 'dangerous drugs' which were prescribed for me by my doctor. I had been taking all of these drugs steadily for at least seven (7) months prior to the time I entered my plea of guilty in this case. Even though the amounts of drugs I took was limited while I was in jail, I was still permitted to take the drugs prescribed for me by my doctor. I had been out on bail about 3 weeks before I entered my guilty plea;

4. That the night before I entered my plea of guilty I took two (2) capsules of LSD. I had been drinking heavily before I took the LSD. I do not recall exactly what time I took the LSD, but it was in the evening hours; sometime after 7 p. m. * * *.

In this same affidavit, appellant also asserted:

That when I tried to explain to my attorney (a week or ten (10) days later) that I hadn't been in my right mind when I pleaded guilty, and therefore wanted him to withdraw my guilty plea, my attorney persuaded me not to inform the court but to say nothing about the LSD. My attorney told me that in all probability I would not have to do more than one (1) year on the charge anyway, and by getting the other charges dropped I would be coming out ahead in the long run. It was at this conversation that I first learned that the other two (2) charges had been dropped * * *.

Once again the superior court denied appellant's Criminal Rule 35(b) motion without holding an evidentiary hearing. ¹² Appellant has...